Saturday, June 24, 2017

Infineon Melaka Issue - Business & Human Rights Resource Centre carried the statement by 55 groups. The Re-Joinder was published, but they had technical problems - resulting in us not finding it on their website...

Then BHRRC asked the groups to prepare a response to Infineon's response, which they said that this will be published together with INFINEON's response...unfortunately, to date, there is no publication possibly because Infineon did not make a response...so, now we publish the said response from the 55 groups..Hopefully, we will be able to get an Infineon Response soon... [The Infineon's response to which the 55 groups responded to is found below the groups' response]

It has been decided to issue a rejoinder to INFINEON’s response. Attached please find the response authored by Charles Hector, Syed Shahir bin Syed Mohamud, Mohd Roszeli bin Majid,Pranom Somwong via Good Electronics with the support of 54organisations, trade unions and groups. As an attachment to the response, a document containing documentary evidence is included

RESPONSE TO INFINEON’S REPLY TO STATEMENT OF 55
GROUPS

This is the response
to Infineon’s response to the Joint Statement of 55 groups and organisation
including trade unions, that was
published in the Business & Human Rights Resource Centre website. Infineon
was responding to the Joint Statement of 31/1/2017 was entitled, ‘INFINEON MUST
STOP UNION BUSTING AND DISCRIMINATION AGAINST UNION LEADERS -Reinstate
Zulfadlee Thye Abdullah, President of Infineon Technologies Melaka Workers
Union’

In Infineon’s
response, it is alleged that the statement
‘contains factually incorrect and subjective conclusions’ but there is no
mention at what exactly is ‘factually incorrect’, hence making it difficult to
respond effectively to clarify INFINEON’s assertions.

In any event, we
will respond to some of the issues raised by INFINEON. We also enclose a
follow-up document entitled’ WRONGFUL
DISMISSAL OF ZULFADLEE BY INFINEON’ which have also already been sent to Infineon.
The said document is a more comprehensive record of facts, supported also by
documentary evidence, verified by the affected Union President, Zulfadlee. It forms part of our rebuttal to Infineon’s
reply.

Response to Infineon’s assertion
‘there is no truth to the allegation that Infineon is “union busting” or
discriminating against union leaders and officers.’

Infineon states
that ‘there is no truth to the
allegation that Infineon is “union busting” or discriminating against union
leaders and officers.’ This can quickly be rebutted by the following
points:-

a) Whilst about
40 employee and union members took part in the said Union rally, disciplinary
action has only been commenced on the Union President, and then 6 other Union
leaders. The Union President was wrongfully dismissed, and the other Union
leaders were allegedly given lesser punishment of warnings. This, itself,
suggest the targeting of Union leaders.

b) The fact that
Zulfadlee was the Union President was a consideration, possibly a material
consideration, in the disciplinary proceedings against an employee. The disciplinary proceeding, from the
decision to initiate disciplinary action to the final rejection of the appeal,
should never been based on the fact that he was the Union President. This is evidenced by, amongst others, Infineon’s
own letter rejecting the employee’s appeal against the decision to dismiss dated
6/1/2017 - ‘…The basis of our decision was premised on the fact that the Management
could not condone nor mitigate punishments for a serious act of misconduct
committed by a Union President…While that may ordinarily be a mitigating
factor in considering any appeal, the Management has decided that the your
act of malingering is deemed to be unacceptable and is aggravated in view of
you being the Union President’. This letter is undisputable documentary
evidence, and is also included in the follow-up document attached below.

c) The law in
Malaysia is settled that a Union President or office bearer or a union member,
even if he has been dismissed, more so if he claims wrongful dismissal,
continues to be the Union President until the dismissal matter is ultimately
resolved in the courts, and as Union President, he has the right to carry out
all his functions and responsibilities. This matter was brought to the
attention of Infineon, but disappointingly Infineon has specifically denied Zulfadlee entry and/or access to even the Union office, and also be involved
in the Collective Bargaining process between the Union and Infineon. See email
from Infineon dated 17/1/2017, which is also included in the attached document.

d) The action
against the other 6, which has been alleged to have ended with ‘warnings‘, may bring about ‘greater
pressure’ on these leaders, which may even result in the union being
compromised. A warning impacts to promotions and
increments, as seen in in Infineon’s own document on Misconducts found in the
attached documents. It would affect the way a Union may behave after this? Will
they be more agreeable with Employer demands? Will they not fight as hard for
workers? Only time will tell – but the risk is high that following the
disciplinary action taken against the President and 6 others in the Union
Committee, the Union maybe less demanding and more accommodating to the demands
of the Company.

Response to Infineon’s assertion
that ‘the reason for the dismissal was a misconduct committed’

a) Infineon
allegations that the reason for the
dismissal was a misconduct committed but it must be pointed out that it was
not a misconduct listed in Infineon’s
own comprehensive and specific list of misconducts that covers both
expressed and implied breaches of contract. It is wrong to create a new
misconduct, that never existed before just to take disciplinary
action against an employee. An act of malingering may be a misconduct for many other
employers, but in this case, it is not in the list as contained in INFINEON
Technologies (Malaysia) Sdn. Bhd’s document entitled Policy for Misconduct and
Disciplinary, which is also in the attached document.

b) In Malaysia, even
in a situation when an act of malingering is a valid employment misconduct (not
so in our case), the courts considered this was merely a ‘technical misconduct’
certainly not one warranting dismissal. In that case, the worker had played
football when on sick leave. (Azali Elias V. Crown Jewel Hotel Industrial
Court, Penang, Award No: 331 Of 2008 Case No: 9/4-1634/05, 26 February 2008).

Response to Infineon’s assertion ‘…the
employee did admit his misconduct towards the company…’

Infineon alleged
that ‘…the employee did admit his
misconduct towards the company…’ but provides no reference as to when
and/or where this admission happens. As such, it makes it difficult for us to
respond to this assertion by Infineon. In any event, our brief response is as
follows:-

a) In fact,
after perusal of all the relevant documents, he never admitted to committing
any act of malingering, an employment misconduct. In his letter dated 9/11/2016 in response to
Infineon’s allegation, he clearly says, “…I
would humbly explain and mention that my action on the
18" October 20 16, did not break any rules or procedures in the Employment
Act 1955 (Section 60 - Medical Leave), Company Policy For Sick Leave &
Hospitalization and also the Company Policy for Misconduct and Disciplinary
Action…”. This letter can be seen in the attached document below.

b) One cannot be guilty of a misconduct that did
not exist at the time when it is alleged to have happened . The existing list
of misconducts in Infineon Melaka do not make committing ‘an act of
malingering’ a misconduct. The charge levied against Zuldfadlee also does not
make reference to any of the listed misconducts in Infineon Melaka. An
admission to a misconduct that did not even exist at the material time is
irrelevant and meaningless. In any event, we find no admission of committing
misconduct. A new misconduct cannot be created unilaterally by an employer, it
must be done with the agreement of both the employer and the employee(and/or
union).

c) Admission to an allegation (or ‘misconduct’)
not clearly explained and/or understood to the accused will be no real
admission in law. To allege a worker had
committed a misconduct, in this case being an ‘act of malingering’, in English
to a worker more proficient in the local language of Malay, and not to properly
explain at any time as to what is the real meaning of the charge of committing
an ‘act of malingering’ is very wrong. One cannot admit to a charge one does
not understand.

d) The charge
against the employee was also made further confusing when it included the fact
that he was on sick leave and had participated in a union activity on the said
date – this would tend to give the wrong impression to a worker. He/she may be misled
into believing that ‘an act of malingering’ means the participating in a union
activity whilst on sick leave (a non-working day). That clearly is not the meaning of this misconduct – it
means pretending (or feigning) illness to avoid work. What a worker was seen doing whilst on paid sick
leave may only be the basis for the Employer suspecting that there may be a
possibility that an ‘act of malingering’ may have been committed by the said
worker - but it certainly is not proof that an ‘act of malingering’ was
committed.

e) Infineon had
never did adduce any proof that Zulfadlee had lied about his condition to
obtain the sick leave, OR that he ‘feigned illness’ to avoid work. To prove
that one committed an act of malingering, it must be proven that he pretended
to be sick(when not really sick) for the purpose of avoiding work. Here, in our case, Zulfadlee was examined by a
qualified doctor from Infineon’s own panel clinic who certified that he was
indeed sick and his condition warranted the issuing of a medical certificate
which made him entitled to a paid sick leave(a non-working day). Being still
not well, the following day, Zulfadlee saw a specialist doctor, and was again
given paid sick leave for another 3 days. A radiology report confirms that he
indeed had a genuine medical problem, being a stone in the bladder/kidney. As
such, to suggest that Zulfadlee was feigning illness would be irrational and
without basis. These documents are also in the attached document below.

f) Zulfadlee has
never denied the fact that he did attend the Union activity, and he has always
maintained that this decision to participate in the union activity was made
after he had seen the doctor, and after he was already on sick leave. The
decision to go and participate was a last minute decision, certainly not the
reason why he went to see the doctor in the first place.

g) In Malaysia,
a paid sick leave is a right in law, and is a paid ‘non-working day’. As such,
this dismissal goes against Infineon’s own position, as stated even in Infineon’s
own response, i.e ‘…Union members (and
union leaders/officers) are entitled to attend union activities when they are
free (e.g. while on annual leave or on non-working days)…’. A paid sick leave is such a ‘non-working day.

h) Zulfadlee was
allegedly also given false representations by Infineon’s management staff, i.e.
that the employer was unhappy with his attendance at a union activity whilst he
was on sick leave, and if he was willing to admit to that ‘mistake’ and apologize,
all will be well. This misrepresentation would have also aggravated the
misunderstanding as to the alleged misconduct of committing an ‘act of
malingering’ was. This representations (or misrepresentations) of the
employer’s officers/agents may have also affected his conduct in dealing with
the charged levied against him.

i) Even the
Domestic Inquiry would not be considered a valid Domestic Inquiry as required
by law and/or justice. There was no right to be represented by a lawyer, a
union representative or some other. The charge was also invalid and void, for reasons
already made. It was defective – confusing, unclear, never explained and most importantly not an agreed
misconduct in Infineon Melaka at the material time. Even when translated to Malay,
on the request of Zulfadlee, it was not even an accurate translation, and can
be said to be misleading. As the Domestic Inquiry was considered invalid,
certainly not in accordance to the accepted standards of justice, we choose to
not discuss that too much at this stage.Now,if he was represented by a good
lawyer, we would most likely be where we are today – Zulfadlee would have been
happily working in Infineon.

Response to the assertion ‘Infineon
does not want to go into more details until the administrative/judicial process
brought by the employee is completed.’

a) This matter
is NOT yet before the Industrial Court, and there is nothing preventing Infineon and Zulfadlee, the dismissed Union
President, from resolving this matter now, and ensuring that justice is done. The
Union President is ready, but Infineon seems not.

b) In Malaysia,
a dismissed worker MUST file a complaint at the Industrial Relations Department
(IRD) within 60 days if we wants to claim reinstatement. The IRD will then call
both the Employer and Wrongfully Dismissed Worker and attempt a Conciliation.

c) If
conciliation fails, the matter is referred to the Minister who then decides
whether to refer the matter to Industrial Court or not – only about 60 over
percent of cases gets referred. If not referred, the worker can still apply for
Judicial Review at the High Court – but the cost is high and most workers
simply will not be able to afford it and justice will not be done. If the
Minister refers a case to the Industrial Court, then the case will proceed –
but it all takes a very long time in Malaysia. As an example, the case Wan
Noorulazhar bin Mohd Hanafiah, an employee of RENESAS who is the President of
the Electronic Industry Employees Union Western Region, Peninsular Malaysia (EIEUWR)
was dismissed on 26/8/2011 by RENESAS, is still yet to be disposed by the
Industrial Court after more than 5 years. Now, even if the worker is successful at the
Industrial Court, the Employer usually appeals, and when all is done it may be
about 9 years or even more.

d) Even when a
matter is before the court, there is nothing preventing an earlier and speedy
resolution of the dispute. To choose to simply wait for the courts to finally
resolve the dispute, more so in a situation where the parties are certainly not
in equal footing, as in this case between an employer who continues unaffected
as to business and profits, and an employee who has now lost his employment and
income, is certainly no action or conduct of a just employer.

e) If the case
in courts takes too long to resolve, even when the wrongfully dismissed workers
wins, the court may most likely not consider ordering reinstatement viable, but
may simply order compensation in lieu of reinstatement. In Malaysia, the law was amended several years
ago, despite the protest of unions and workers,
and a maximum limit has been placed on compensation in lieu of
reinstatement - no more than 24 months back wages. This is highly prejudicial
to workers especially when wrongful dismissal cases takes so long to end. Previously, before the amendment, the worker would have been entitled to back
wages from the day of wrongful dismissal or until at least the date of final
judgment.

f) In Malaysia,
even when the affected worker is a union member, unions may not be able to bear
the cost and expense of a prolonged legal battle, and the affected worker will
end up paying the legal fees and the cost of struggle in court. Both parties
will already have to bear their own legal fees, but when the case goes to the
High Court, there is additional question of cost.

g) In the
Industrial Court, there is no cost that the loser will be ordered to pay the
victor, but when the matter reaches the High Court, the Court of Appeal and the
Federal Court, the courts will generally order the loser to pay cost to the winner,
and this can be very high possibly even tens of thousands of ringgit.

h) With the new
limit of merely 24 months back wages, most workers would not be able to
continue their struggle and would simply give up – Justice will not be done.
Even if they are finally successful, workers may end up paying their lawyers
even more than what they get. High waged or richer workers maybe able
to afford a prolonged battle in the Malaysian courts, but lower waged workers
(including possibly Zulfadlee) may not be able to afford the cost and time of a
long legal battle.

i) Infineon must
be fully aware of this fact, as such the taking of the position of waiting ‘…until
the administrative/judicial process brought by the employee is completed...’
can be considered unjust and an anti-human rights position.

j) As such, we
hope that Infineon would change its position, and choose to ensure that justice
is done speedily now. Justice delayed is justice denied.

k) Considering additionally, that this is a case of the Union
President. One must consider the impact that it may have on the Union, its
members and also other workers at Infineon. It may result in a weak, fearful
and ‘friendly’ trade union, which we hope is not what Infineon wants. In its Business Conduct Guidelines, it says
that Infineon “…respect and acknowledge the right of employees to form
representative bodies to conduct collective bargaining negotiations on working
conditions…”, and a weak or
‘compromised’ union will surely not be the kind of union that Infineon, that ‘…respects
worker and human rights…”, will want or is it?

INFINEON should be committed to Much
Higher Standards not simply Malaysian standards or Infineon Melaka’s standards

a) In its
Business Conduct Guidelines, Infineon that it is ‘…especially committed to
respecting and protecting human rights and have undertaken to uphold the
principles of the United Nations Global Compact in relation to human rights,
labor standards, …Infineon also claims that they ‘…observe and promote the
basic fundamental principles defined in the conventions of the International
Labor Organization (ILO).

b) Infineon,
being a German Company, is also bound by the OECD Guidelines. As a member of
the Electronic Industry Citizenship
Coalition(EICC), it is also bound by the
EICC Code of Conduct. Being in the supply chain of major brands like Apple,
BOSCH, Philips, Microsoft, Hewlette Packard, Dell and Continental, it is also
bound by their Codes of Conduct, Standards and Best Practices.

c) It is sad
that in its response, Infineon seems to be only looking at its own compliance
guidelines and the local Malaysian labour laws, when it should be guided by these
higher standards and best practices.

e) Malaysia has
not even ratified all the core ILO Conventions.
When Malaysia wanted to be part of the Trans Pacific Partnership Agreement (TPPA),
Malaysia had to enter into an Agreement with the United States to make
substantial amendments to most of its existing labour legislations, a condition
that it had to fulfil, before it could be a party to the TPPA. These amendments
were being prepared to be tabled, which we hope still be tabled soon despite
recent development that may not see the TPPA going forward. Infineon, should be
looking to the higher standards and international best practices rather than
simply looking at lower standards in Malaysia.

d) It must be
pointed out here, that we have yet to highlight points of non-compliance of the
UN Global Compact, OECD Guidelines, EICC Code of Conduct, basic fundamental
principles of ILO, and other standards and codes of conducts including also
INFINEON’s own conduct guidelines. This will be done at a later date, if still
deemed necessary.

e) In the
Infineon’s response, there was mentioned about
disciplinary actions taken against ‘6 other union leaders for misconduct’.
We believe there are valid concerns about these actions too, but at this time
we choose not to deal with this. We have also not dealt with some other minor issues
raised, but we believe that we have raised some points on the main issues
contained in Infineon’s response . If needed, we may provide a further response
later, or maybe even provide a further reply, if needed, when Infineon responds
to this response.

It must also be
pointed out that the GoodElectronics and the other 54 groups that are
co-signatories of the Joint Statement dated 31/1/2017, did consider the
relevant facts, the law and international standards and best practice, and we
stand by this statement and urge Infineon to immediately comply with the stated
demands.

This document
entitled’ WRONGFUL DISMISSAL OF ZULFADLEE BY INFINEON’ is also included as part
of our response to Infineon’s reply.

We verily
believe that Infineon at Melaka(or some officers there), may have made a
mistake, and we hope that in all fairness, Infineon would do the needful, as
per our demands and more. Infineon must demonstrate that it will ‘…take
decisive action against any form of discrimination..’ – in this case a
discrimination against an employee/s possibly by reason of the position he/
they held in the union?

We also hope
that Infineon will immediately stop preventing the Union President from
carrying out his duties/responsibilities. He should be allowed to enter the
Union office.

Justice Delayed
is Justice Denied. Zulfadlee, the Union President, has indicated that he is
ever willing to return to work, and has also indicated that he would not hold
any grudge against the company, and will also endeavour to move forward in the
spirit of industrial harmony between the Union and Infineon.

As such, we hope
that this ‘mistake’ could be speedily resolved, without any further delay.

# The document entitled WRONGFUL DISMISSAL OF ZULFADLEE BY
INFINEON is attached here.

Charles Hector

Syed Shahir bin
Syed Mohamud

Mohd Roszeli bin
Majid

Pranom Somwong

For and on
behalf of the 55 organisations, trade unions and groups listed below

Yayasan LINTAS
NUSA, Batam-Indonesia

Global Women's
Strike UK

Legal Action for
Women UK

Women of Colour
GWS

MTUC Selangor
& Wilayah Persekutuan

Pusat Komas

SHARPS, South
Korea

GoodElectronics
International Network

CIVIDEP, India

Students &
Scholars Against Corporate Misbehaviour (SACOM), Hong Kong

Parti Sosialis
Malaysia (PSM)

Jaringan Rakyat
Tertindas (JERIT)

Community
Development Centre (CDC)

#####

The Infineon
RESPONSE

Dear Ms Isabel
Ebert,

Infineon
employs ca. 8,000 employees in Malacca, Malaysia. The plant is Infineon’s
biggest semiconductor production site worldwide. Infineon is well respected as
a good and responsible employer in Malacca, and has been cultivating long-term
and trusting relationships with employee representatives.
Infineon enjoys an excellent reputation in Malaysia.

The report of
January 31 by Good Electronics is known to us. Unfortunately the report
contains factually incorrect and subjective conclusions. There is no truth to
the allegation that Infineon is “union busting” or discriminating against union
leaders and officers. The insinuation that Infineon is taking these
steps shortly before negotiations for the next Collective Agreement begin, just
to prejudice union members, is ignoble.

That the events drove the timing of
Infineon’s dismissal/disciplinary action; Infineon was not in control of these
events. What is true is that Infineon does not tolerate or condone misconduct
by its employees at any time; whether or not they are union leaders and
officers is irrelevant.

Infineon is
committed to human rights and worker rights. Infineon does not impinge on its
employees’ freedom of association or participation in union activities. Union
members (and union leaders/officers)
are entitled to attend union activities when they are free (e.g. while on
annual leave or on non-working days). However, the company has an obligation to
investigate cases of apparent misconduct, even if those cases involve union
leaders and officers. There is neither preferential treatment nor
discriminatory treatment for union leaders and officers.

Infineon gave
notice to an employee at the Malacca production site, who has been president of
a local trade
union since 2005. Reason for the dismissal was a case of misconduct by that
employee in autumn
2016. The employee did admit his misconduct towards the company and the case is
well documented.
Infineon does not want to go into more details until the administrative/judicial
process brought by the employee is completed.

We can assure
you that Infineon did not make that decision easily and has carried out an
in-depth examination
of the case. Considering compliance guidelines and in accordance with Malaysian
labour laws the local management has hereby concluded that this form of
misconduct cannot be tolerated.

Also Infineon has taken decisions and dismissed employees for clear cases of
misconduct – in compliance with the common application of Malaysian law.

Infineon also
investigated 6 other union leaders for misconduct and discovered that they
acted contrary to Malaysia’s Industrial Relations Act and contrary to the
existing Collective Agreement between the union and Infineon Malaysia.
Therefore, the disciplinary action against them was justified by law. It was
not done as an act of union busting, nor in violation of any of Infineon’s
internal policies or the employees’ freedom of association.

Integrity is
our guiding principle in dealings with our customers, shareholders, business
partners, employees and the general public. We expect from all employees on all
levels – especially high-ranking colleagues – a professional conduct according
to the rules. Outlining the important regulations and provide support in legal
and ethical questions, the Infineon business conduct guidelines apply to all
persons employed at Infineon and members of corporate bodies of Infineon Technologies
AG and its affiliates worldwide. We are absolutely bound by it.

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